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  • News: EOIR Final Rule on the List of Pro Bono Legal Service Providers for Individuals in Immigration Proceedings

    Federal Register, Volume 80 Issue 190 (Thursday, October 1, 2015)
    [Federal Register Volume 80, Number 190 (Thursday, October 1, 2015)]
    [Rules and Regulations]
    [Pages 59503-59513]
    From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
    [FR Doc No: 2015-24017]
    
    
    
    Federal Register / Vol. 80 , No. 190 / Thursday, October 1, 2015 / 
    Rules and Regulations
    
    [[Page 59503]]
    
    
    -----------------------------------------------------------------------
    
    DEPARTMENT OF JUSTICE
    
    Executive Office for Immigration Review
    
    8 CFR Parts 1003, 1240, and 1241
    
    [EOIR Docket No. 164P; A.G. Order No. 3565-2015]
    RIN 1125-AA62
    
    
    List of Pro Bono Legal Service Providers for Individuals in 
    Immigration Proceedings
    
    AGENCY: Executive Office for Immigration Review, Department of Justice.
    
    ACTION: Final rule.
    
    -----------------------------------------------------------------------
    
    SUMMARY: This final rule adopts, as amended, the proposed rule entitled 
    ``List of Pro Bono Legal Service Providers for Aliens in Immigration 
    Proceedings.'' The final rule changes the name of the ``List of Free 
    Legal Service Providers,'' maintained by the Executive Office for 
    Immigration Review (EOIR), to the ``List of Pro Bono Legal Service 
    Providers'' (List). It enhances the eligibility requirements for 
    providers to be included on the List. It authorizes the Director of 
    EOIR, or his or her designee, to place providers on the List and remove 
    them from the List. The rule also allows the public to comment on 
    eligible applicants and requires approved providers to certify their 
    eligibility every 3 years.
    
    DATES: This rule is effective November 30, 2015.
    
    FOR FURTHER INFORMATION CONTACT: Jean King, General Counsel, Executive 
    Office for Immigration Review, 5107 Leesburg Pike, Suite 2600, Falls 
    Church, VA 22041, telephone (703) 305-0470 (not a toll-free call).
    
    SUPPLEMENTARY INFORMATION: 
    
    I. Public Participation
    
        On September 17, 2014, the Department published in the Federal 
    Register a rule proposing to amend EOIR's regulations governing the 
    list of organizations, pro bono referral services, and attorneys 
    available to represent individuals in immigration court on a pro bono 
    basis. 79 FR 55662. The comment period ended November 17, 2014. The 
    Department received seven comments. Both in response to these comments 
    and as the result of further consideration, the Department has decided 
    to revise the proposed rule as discussed below. Except for these 
    revisions, the proposed rule is adopted without change.
    
    II. Regulatory Background
    
        This rule amends 8 CFR part 1003 by revising Sec. Sec.  1003.61 
    through 1003.66. It also amends 8 CFR parts 1240 and 1241 by revising 
    Sec. Sec.  1240.10 and 1241.14, respectively. The rule provides the 
    Director of EOIR or his or her designee with the authority to maintain 
    the quarterly List. See Sec. Sec.  1003.61(a)(1), (b). The rule 
    modifies the criteria for organizations,\1\ pro bono referral 
    services,\2\ and attorneys to be placed on the List, stating in part 
    that attorneys and organizations must provide at least 50 hours 
    annually of pro bono legal services at each immigration court location 
    where the attorney or organization intends to be on the List.\3\ See 
    Sec.  1003.62. The rule also specifies that an attorney can appear on 
    the List only under certain circumstances and only if he or she cannot 
    provide pro bono services through or in association with an 
    organization or pro bono referral service. See Sec.  1003.62(d). The 
    rule identifies the information that organizations, pro bono referral 
    services, and attorneys must provide to EOIR when applying to be on the 
    List. See Sec.  1003.63. Regarding the application process, the rule 
    states, in part, that the names of applicants meeting the regulatory 
    requirements will be posted for public comments. See Sec.  1003.63(f). 
    The rule also requires that, every three years, providers on the List 
    must certify that they continue to meet the eligibility requirements. 
    See Sec.  1003.64(b)(2). In addition, the rule specifies the procedures 
    for removing providers from, and reinstating them to, the List. See 
    Sec.  1003.65.
    ---------------------------------------------------------------------------
    
        \1\ The rule, at Sec.  1003.61(a)(3), defines an 
    ``organization'' as ``[a] non-profit religious, charitable, social 
    service, or similar group established in the United States.'' 
    Organizations can apply to be recognized by EOIR pursuant to 8 CFR 
    part 1292. This rule distinguishes between organizations that have 
    been recognized by EOIR and other, non-recognized, organizations.
        \2\ The rule, at Sec.  1003.61(a)(4), defines a ``pro bono 
    referral service'' as ``[a] referral service, offered by a non-
    profit group, association, or similar organization established in 
    the United States that assists persons in locating pro bono 
    representation by making case referrals to attorneys or 
    organizations that are available to provide pro bono 
    representation.''
        \3\ As previously noted at 79 FR 55662 n.2, the term 
    ``immigration court location'' refers both to the immigration courts 
    and to facilities where hearings may be conducted but where no EOIR 
    personnel have a permanent duty station.
    ---------------------------------------------------------------------------
    
    III. Comments and Responses
    
        As noted above, the Department received seven comments in response 
    to the proposed rule. One comment was from the Executive Director of 
    the Catholic Legal Immigration Network; one was from a professor and 
    director of a law school clinical program; one was from the Director of 
    the Immigration Program of the Legal Aid Society of Rochester, New 
    York; one was from a group of three law students; two were from 
    individual commenters; and one was from an anonymous commenter. Below, 
    the Department has summarized the comments and explained the changes 
    the Department has made in response. Because some comments overlap and 
    commenters raised multiple subjects, the comments are addressed by 
    topic rather than by reference to a specific commenter.
    
    A. The 50-Hour Requirement
    
        The Department received a number of comments regarding the 
    requirement, at Sec. Sec.  1003.62(a)(1), (b)(1), and (d)(2), that each 
    attorney and organization provide at least 50 hours per year of pro 
    bono legal services at each immigration court location where the 
    attorney or organization intends to appear on the List. The Department 
    had posed four questions: whether the requirement is too demanding for 
    certain private attorneys; whether the requirement is not demanding 
    enough for organizations; whether the standards for organizations and 
    attorneys should differ from one another in any other way; and whether 
    there are alternative standards, for example relating to the number or 
    type of cases accepted, that would be more appropriate measures of pro 
    bono representation. See 79 FR 55665-66.
    1. Attorneys
        Three commenters addressed the impact of the 50-hour requirement on 
    attorneys, with two supporting the requirement and one questioning it. 
    Of the supporters, one stated that the requirement was ``appropriate'' 
    for attorneys, and the other noted that the requirement is consistent 
    with the American Bar Association's Model Rule of Professional Conduct 
    (ABA Model Rule) 6.1, which states that ``[a] lawyer should aspire to 
    render at least (50) hours of pro bono publico legal services per 
    year.'' \4\ The commenter who questioned the requirement raised 
    concerns that it would be too burdensome for solo or small-firm 
    practitioners. This commenter offered an example of a solo practitioner 
    in Arkansas representing a detained client before the Oakdale, 
    Louisiana, Immigration Court, then appearing before the Memphis, 
    Tennessee, Immigration Court after the client is
    
    [[Page 59504]]
    
    released. To be on the List for both the Oakdale and Memphis courts, 
    the attorney would have to perform 100 hours of pro bono representation 
    annually, or 50 before each court. Also, this commenter argued, the 
    paperwork would be burdensome for a solo or small-firm practitioner, 
    and such an attorney's ability to represent clients pro bono in non-
    immigration proceedings could be impacted.
    ---------------------------------------------------------------------------
    
        \4\ In the Notice of Proposed Rulemaking at 79 FR 55665 n.8, the 
    Department cited ABA Model Rule 6.1 in support of the 50-hour 
    requirement.
    ---------------------------------------------------------------------------
    
        The final rule keeps the 50-hour requirement with respect to 
    attorneys. The Department agrees with the commenters who supported the 
    requirement. While the Department appreciates the other commenter's 
    concerns, the 50-hour requirement for attorneys is essential to the 
    rule. As noted in the Notice of Proposed Rulemaking, EOIR has 
    consistently received complaints that certain attorneys on the List do 
    not accept significant numbers of pro bono cases. 79 FR 55663-64. The 
    50-hour requirement will help ensure that attorneys listed as providing 
    pro bono legal services in a specific location are actually available 
    to do so. This rule does not impose any limits on an attorney's pro 
    bono practice, as such, and the 50-hour requirement is applicable only 
    with respect to attorneys who choose to seek inclusion by name on the 
    List.
        With respect to the hypothetical Arkansas solo practitioner wishing 
    to appear on the List for both the Oakdale and Memphis courts, if it 
    would be difficult for him or her to perform 50 hours of pro bono 
    service annually at each court, then he or she likely lacks the 
    resources to provide pro bono services regularly before both courts, 
    and therefore should not be on the List for both courts. The Department 
    does not believe that the 50-hour requirement imposes an undue 
    paperwork burden, as attorneys regularly track the time they spend on 
    individual cases. It is possible that some attorneys wishing to be on 
    the List would have to reduce the pro bono services they provide in 
    non-immigration proceedings. However, the Department's overriding 
    concern is that attorneys on the List be available to provide pro bono 
    representation before EOIR.
        Though the 50-hour requirement will remain substantively unchanged, 
    the Department has amended Sec.  1003.62(d)(2) to clarify that ``[t]he 
    attorney may count, toward the requirement, both out-of-court 
    preparation time and in-court time.'' The Department had explained, in 
    the preamble of the Notice of Proposed Rulemaking at 79 FR 55665, that 
    preparation time counts toward the requirement, but corresponding 
    language did not appear in the proposed rule's text.
    2. Organizations
        Three commenters addressed the impact of the 50-hour requirement on 
    organizations. One supported the requirement, stating that it was 
    appropriate for organizations. The other two recommended that EOIR 
    amend the requirement, noting that organizations often charge nominal 
    fees for representing clients. One of these two recommended dropping 
    the 50-hour requirement for organizations recognized by EOIR under 8 
    CFR part 1292. This commenter argued that recognized organizations are 
    less likely than private attorneys or other organizations to abuse 
    their placement on the List, as they have already established to the 
    satisfaction of the Board of Immigration Appeals that they charge only 
    nominal fees.\5\ This commenter also stated that many recognized 
    organizations would have difficulty meeting the requirement because, 
    based on community needs, they concentrate on representing clients 
    before the Department of Homeland Security (DHS) instead of the 
    immigration courts. The other of the two recommended dropping the 
    requirement for all organizations or, failing that, for recognized 
    organizations. Alternatively, this commenter recommended lowering the 
    requirement to 25 hours annually. In addition, the first of the two 
    argued that the 50-hour requirement for organizations could ``hinder 
    access . . . to emergency pro bono services.'' As an example, this 
    commenter noted that, following the 2014 influx to the United States of 
    individuals from Central America, organizations and attorneys from 
    around the country provided pro bono legal services to recent entrants 
    detained in Artesia, New Mexico.
    ---------------------------------------------------------------------------
    
        \5\ Under 8 CFR 1292.2(a), in order to be recognized by EOIR, an 
    organization ``must establish to the satisfaction of the [Board of 
    Immigration Appeals] that . . . (1) [i]t makes only nominal charges 
    and assesses no excessive membership dues for persons given 
    assistance . . . .''
    ---------------------------------------------------------------------------
    
        The final rule keeps the requirement that both recognized and non-
    recognized organizations provide 50 hours annually of pro bono legal 
    services at each immigration court location where the organization 
    appears on the List. The Department disagrees with reducing the 
    requirement to 25 hours annually. As indicated in the Notice of 
    Proposed Rulemaking, a number of state bar associations recommend that 
    attorneys perform a minimum of 50 hours of pro bono work annually, and 
    ABA Model Rule 6.1 states that lawyers should aspire to perform at 
    least 50 hours of pro bono legal services annually. See 79 FR 55665. In 
    addition, the rule does not require that each of an organization's 
    attorneys and representatives meet the 50-hour requirement, but rather 
    that the organization as a whole perform 50 hours of pro bono legal 
    services annually in order to be included on the List. The Department 
    further disagrees with exempting recognized organizations from the 50-
    hour requirement. The fact that a recognized organization is prohibited 
    from charging more than nominal fees does not establish that the 
    organization is available to represent clients pro bono. As the rule 
    makes clear at Sec.  1003.61(a)(2), representation for a fee, even a 
    nominal fee, is not pro bono representation. Though the Department 
    appreciates that some recognized organizations concentrate on 
    representing clients before DHS, the purpose of the List is to inform 
    individuals in immigration court proceedings of providers who perform 
    significant pro bono services before the courts.
        Though the final rule keeps the 50-hour requirement for 
    organizations, the Department has, in light of comments that some 
    organizations do not have the resources to represent clients in 
    immigration court proceedings without charging at least a nominal fee, 
    modified the requirement to allow organizations to count pro bono 
    services in some cases where the organization did not actually 
    represent the client. Specifically, the Department has amended 
    Sec. Sec.  1003.62(a)(1) and (b)(1) to allow organizations to count, 
    toward the requirement, time an organization's attorneys and 
    representatives spent providing pro bono legal services in cases the 
    organization eventually referred to an outside provider for pro bono 
    representation before the immigration court location. In the proposed 
    rule, by contrast, organizations could count only time spent on cases 
    where an attorney or representative of the organization represented the 
    client. In addition, as with the provision addressing attorneys, the 
    Department has amended Sec. Sec.  1003.62(a)(1) and (b)(1) to clarify 
    that, ``[w]hen an attorney or representative of [an] organization 
    represents [an] individual pro bono . . . the organization may count, 
    toward the 50-hour requirement, the attorney's or representative's out-
    of-court preparation time and in-court time.''
        Regarding pro bono legal services offered temporarily following 
    events
    
    [[Page 59505]]
    
    such as the 2014 influx of individuals from Central America, the 
    Department encourages such services and does not believe they would be 
    hindered by the rule. The rule does not impose limits on an 
    organization's ability to offer pro bono services before any 
    immigration court location, including those at which the organization 
    does not appear on the List. The List, which EOIR anticipates updating 
    quarterly,\6\ is not designed to publicize services offered for less 
    than three months at a time. However, the Department encourages 
    organizations to publicize any such short-term services in 
    collaboration with organizations or pro bono referral services already 
    operating in the relevant location. Should the need arise, EOIR may 
    explore how to assist with publicizing such services as well.
    ---------------------------------------------------------------------------
    
        \6\ See Sec.  1003.61(b) (stating that the List ``shall be 
    updated not less than quarterly'').
    ---------------------------------------------------------------------------
    
    3. Alternatives to the 50-Hour Requirement
        One commenter responded to the Department's question about 
    alternative ways to measure pro bono services. This commenter was 
    opposed to requiring a provider to accept a specific number of pro bono 
    cases, as some cases require dramatically more work than others. 
    However, this commenter stated that ``[a] measurement regarding the 
    types of pro bono cases accepted may . . . be appropriate if it is done 
    correctly,'' primarily because ``such a requirement might encourage 
    each organization to accept a variety of cases, rather than allowing a 
    single attorney or organization to take on every simple case.'' The 
    Department agrees that, generally speaking, it is beneficial for each 
    organization and attorney on the List to accept a variety of pro bono 
    cases. However, the Department declines to incorporate, into the final 
    rule, any requirement concerning the types of cases providers accept, 
    as the nature of cases varies between immigration court locations. In 
    addition, it can sometimes be valuable for providers to specialize in 
    particular types of cases, thereby building their expertise.
    
    B. Restrictions on Private Attorneys on the List
    
        One commenter responded to the proposed rule's provision, at Sec.  
    1003.63(d)(3), that an individual attorney who does not work for a pro 
    bono organization (``private attorney'') cannot appear on the List if 
    he or she can provide pro bono legal services through or in association 
    with a nonprofit organization or a pro bono referral service. This 
    commenter ``generally support[ed]'' the requirement but expressed two 
    concerns. First, this commenter stated that, ``especially in rural and 
    isolated immigration courts, the List has traditionally served the 
    beneficial, though unintended, purpose of identifying local attorneys 
    who were willing to represent respondents,'' and that this ``unintended 
    function of the List is actually critical to access to counsel in those 
    immigration courts.'' This commenter concluded that ``[e]liminating all 
    the private attorneys from the List (which will happen in most courts 
    that have at least one nonprofit organization providing pro bono legal 
    services) will result in an overall reduction in access to counsel'' in 
    some locations, ``unless EOIR takes other reasonable steps to provide 
    information to the respondents regarding how they may locate attorneys 
    willing to represent them before the court.'' (Emphasis omitted). 
    Second, this commenter argued that ``[a]nother consequence of 
    eliminating private attorneys from the List is that the nonprofit 
    organizations remaining on the List will experience a much greater 
    volume of calls to their organizations.'' This commenter stated that 
    ``EOIR has made great progress in supporting pro bono representation,'' 
    but ``must provide more resources to support the organizations 
    remaining on the List on whom the entire burden of sustaining pro bono 
    representation in immigration court will now fall.''
        The Department believes that the provision at issue is necessary. 
    To the extent that the List functions to inform individuals in 
    immigration court proceedings of attorneys who will represent them for 
    a fee, this function is, as the commenter noted, unintended. The List's 
    intended function is to inform such individuals of providers who will 
    represent them pro bono. The provision at issue, drafted in light of 
    complaints that certain attorneys on the List do not accept significant 
    numbers of pro bono cases,\7\ will help ensure that attorneys who do 
    not accept significant numbers of pro bono cases will not appear on the 
    List.
    ---------------------------------------------------------------------------
    
        \7\ See 79 FR 55663-64.
    ---------------------------------------------------------------------------
    
        However, the Department acknowledges the concern that, once the 
    rule takes effect, individuals in immigration court proceedings in 
    some, particularly rural, locations may be less informed than they 
    currently are of paid legal services, as well as the concern that 
    organizations on the List could receive more inquiries than they have 
    the capacity to handle. EOIR is committed to improving access to legal 
    information and counseling and to increasing representation rates 
    before the immigration courts. In line with the commenter's 
    suggestions, EOIR may explore other ways to inform individuals in 
    proceedings about paid legal services, including providing contact 
    information for bar associations through which they may be referred to 
    local immigration counsel. In addition, organizations are welcome to 
    contact EOIR directly, after the rule takes effect, with observations 
    regarding the rule's effects on organizations' operations and on access 
    to counsel in the immigration courts.
    
    C. Renaming the List
    
        Three commenters addressed the fact that the proposed rule, at 
    Sec.  1003.61(b), renamed the ``Free Legal Services Providers List'' as 
    the ``List of Pro Bono Legal Service Providers.'' One commenter agreed 
    with the name change, stating that the use of the word ``free'' 
    ``implies that there is no financial responsibility for any client 
    wishing to receive legal services.'' The second commenter stated that, 
    while the term ``pro bono'' is understood by attorneys and ``may 
    provide clarity to members of the bar,'' its meaning may not be clear 
    to individuals in immigration court proceedings. In light of this fact, 
    and because many pro bono providers also charge fees to some clients, 
    this commenter suggested that EOIR use a title such as ``Free and Low-
    Cost Legal Service Providers.'' The third commenter ``generally 
    support[ed]'' the use of the term ``pro bono,'' but, like the second 
    commenter, cautioned that this term may be unclear to some, and 
    recommended ``includ[ing] a sentence explaining the purpose for which 
    the services are provided.''
        The final rule retains the name ``List of Pro Bono Legal Service 
    Providers.'' As noted in the Notice of Proposed Rulemaking at 79 FR 
    55663, the use of the term ``pro bono'' tracks the language in the 
    Immigration and Nationality Act. See Immigration and Nationality Act 
    (INA or Act) sections 208(d)(4)(B) (requiring EOIR to provide asylum 
    applicants with a list of providers available ``on a pro bono basis''), 
    239(b)(2) (requiring EOIR to compile lists of providers ``who have 
    indicated their availability to represent pro bono aliens in [removal] 
    proceedings''). However, the Department acknowledges that some 
    individuals in immigration court proceedings will not understand this 
    term. Therefore, the Department will consider including, on the List, a 
    short statement clearly explaining the List's nature and purpose.
    
    [[Page 59506]]
    
    D. Fees
    
        One commenter suggested that providers be required to certify, 
    under the penalty of perjury, whether they charge fees to the majority 
    of clients, and that the List should include information on the extent 
    to which each provider charges fees. The Department declines to adopt 
    the commenter's suggestion in the final rule. The Department 
    appreciates that there may be benefits to including, on the List, 
    information on fees. However, the percentage of clients to whom a 
    provider charges fees may well fluctuate, and it could prove difficult 
    for EOIR to verify the accuracy of providers' representations. Though 
    the Department declines, at this time, to require providers to submit 
    information on fees, the Department may, in the future, consider 
    whether information on fees should be incorporated into the List.
    
    E. Filings and Communications
    
        One commenter suggested that, instead of requiring paper 
    applications, EOIR should ``look for alternative electronic methods 
    through which to make an initial application, submit comments or 
    complaints, and apply for continued participation.'' The Department 
    agrees that electronic filings and communications would be beneficial. 
    Beginning when the final rule takes effect, EOIR will accept electronic 
    comments and recommendations from the public pertaining to applications 
    to appear on the List. The Department has revised Sec.  1003.63(f) to 
    make clear that such electronic comments and recommendations are 
    permitted. In addition, EOIR is considering, in the future, permitting 
    prospective and current providers to electronically submit a wide range 
    of documents. Such documents could include applications to appear on 
    the List, declarations that a provider remains qualified to appear on 
    the List, requests to be removed from the List, responses to inquiries 
    and notices from EOIR, and notifications of changes in information or 
    status. EOIR is also considering communicating with prospective and 
    current providers electronically. In the future, EOIR may 
    electronically transmit documents such as decisions to grant or deny 
    applications to appear on the List, inquiries to providers in response 
    to complaints, notices that a provider has automatically been removed 
    from the List or that the Director intends to remove a provider from 
    the List, and decisions to remove a provider from the List. In 
    anticipation of such electronic communications, the Department has 
    revised Sec. Sec.  1003.64(b) and 1003.65(a)(2), (d)(2), (d)(3), and 
    (d)(4)(ii), pertaining to various written communications from EOIR to 
    providers, to state that they can be sent electronically, in addition 
    to by mail. No notice-and-comment period is required for the revisions 
    described in this paragraph, as they pertain to ``agency organization, 
    procedure, or practice'' under 5 U.S.C. 553(b).
        In the meantime, to assist prospective and current providers, EOIR 
    has created a form--Optional Form EOIR-56, Request to be Included on 
    the List of Pro Bono Legal Service Providers for Individuals in 
    Immigration Proceedings--that organizations, pro bono referral 
    services, and attorneys will be able to use to apply to appear on the 
    List, and to certify their continuing eligibility, once the final rule 
    takes effect. The form will be available in an electronic fillable 
    format. However, unless EOIR begins accepting electronic submissions, 
    the completed form will need to be submitted to EOIR on paper. Although 
    EOIR will not require prospective and current providers to use Optional 
    Form EOIR-56, the Department has deleted from Sec.  1003.63(a) the 
    statement that ``[a] form is not required in order to apply to be 
    included on the List.'' This change will allow EOIR greater 
    flexibility, as it gains experience administering the List under this 
    final rule, to further streamline the application process in the 
    future.
    
    F. Other Comments
    
        One commenter, noting the ``language barrier[s]'' and ``social 
    isolation of indigent aliens,'' asked whether either ``translation 
    services [would] be provided,'' or whether a ``provider [would] be 
    required to work in both English and the language spoken by the 
    indigent alien.'' This rule setting forth the requirements for 
    inclusion on the List does not require that providers speak particular 
    languages or supply translation services.\8\ EOIR provides interpreters 
    at immigration court hearings if the individual in proceedings lacks 
    adequate command of English to fully understand and participate in the 
    proceedings. The Department encourages prospective providers to note, 
    in their applications to appear on the List, information such as their 
    languages spoken or translation services offered.
    ---------------------------------------------------------------------------
    
        \8\ The Department notes, however, that the existing EOIR 
    disciplinary rules, which are applicable to all attorneys and 
    accredited representatives appearing before EOIR on behalf of any 
    client, include a general provision that ``[i]t is the obligation of 
    the practitioner to take reasonable steps to communicate with the 
    client in a language that the client understands.'' 8 CFR 
    1003.102(r).
    ---------------------------------------------------------------------------
    
        One commenter, while noting that ``the word `alien' has long been 
    used to describe immigrants'' and appears in the Immigration and 
    Nationality Act, ``encourage[d] EOIR to refrain from using the term . . 
    . wherever possible.'' The Department has deleted the term ``alien'' 
    from the rule's title and, where possible, from the regulatory text, 
    and has avoided using the term in this preamble where possible. The use 
    of the term ``alien'' is often necessary in the Department's 
    regulations governing immigration proceedings given that, as the 
    commenter acknowledges, the term is used throughout the immigration 
    statutes. However, in this final rule, the Department has refrained 
    from using ``alien'' as a generic term for a person in immigration 
    court proceedings, given that individuals in immigration court 
    proceedings can assert that they are United States citizens.\9\
    ---------------------------------------------------------------------------
    
        \9\ For example, immigration judges conduct claimed status 
    review proceedings, in which individuals who are deemed by DHS to be 
    subject to expedited removal from the United States under INA 
    235(b)(1) can argue, among other things, that they are United States 
    citizens. See 8 CFR 1235.3(b)(5).
    ---------------------------------------------------------------------------
    
        One commenter was concerned whether providers' periodic 
    declarations of eligibility under Sec.  1003.64(b)(2) would be 
    available for comment or review by the public, given that they would 
    contain clients' alien registration numbers. The commenter 
    ``encourage[d] EOIR to clearly state in the [final rule] that the 
    declaration . . . shall be maintained in a separate file and can only 
    be reviewed by EOIR staff or the applicant.'' Although EOIR understands 
    the commenter's concern, it is unnecessary to state, in the regulation, 
    that providers' periodic declarations of eligibility can be reviewed 
    only by EOIR staff or the applicant. EOIR appreciates the importance of 
    protecting, from release to the public, alien registration numbers, and 
    other personally identifiable information,\10\ pertaining to 
    individuals in EOIR proceedings. Neither Sec.  1003.64(b)(2) nor any 
    other provision in the rule permits EOIR to release
    
    [[Page 59507]]
    
    providers' periodic declarations of eligibility, or any information 
    contained in them. By contrast, Sec.  1003.63(f)(1) directs EOIR to 
    publicly release the names of applicants meeting the requirements to 
    appear on the List, and to make copies of applications available to the 
    public upon request. Although the declarations could be the subject of 
    requests for release under the Freedom of Information Act (FOIA), 
    EOIR's policy, when releasing information pursuant to a FOIA request, 
    is to redact personally identifiable information pertaining to 
    individuals in EOIR proceedings unless the individual in the 
    proceedings has consented in writing to the release of this 
    information.\11\
    ---------------------------------------------------------------------------
    
        \10\ ``Personally identifiable information'' is ``information 
    which can be used to distinguish or trace an individual's identity, 
    such as their name, social security number, biometric records, etc. 
    alone, or when combined with other personal or identifying 
    information which is linked or linkable to a specific individual, 
    such as date and place of birth, mother's maiden name, etc.'' Office 
    of Management and Budget Memorandum for the Heads of Executive 
    Departments and Agencies, Safeguarding Against and Responding to the 
    Breach of Personally Identifiable Information, May 22, 2007, at 1 n. 
    1, at http://www.whitehouse.gov/sites/default/files/omb/memoranda/fy2007/m07-16.pdf (last visited September 11, 2015).
        \11\ See 5 U.S.C. 552(b)(6) (exempting from release ``personnel 
    and medical files and similar files the disclosure of which would 
    constitute a clearly unwarranted invasion of personal privacy'').
    ---------------------------------------------------------------------------
    
    IV. Other Revisions
    
        In the final rule, the Department has revised Sec.  1003.63(a) to 
    simplify and clarify the application process. Specifically, the 
    Department has deleted the proposed requirement, at Sec.  
    1003.63(a)(5), that an application be served on the court administrator 
    for each immigration court location where the provider intends to 
    perform pro bono legal services. The Department has concluded that this 
    requirement is unnecessary, as court administrators can be informed of 
    prospective providers through other means. The Department has also 
    deleted, as unnecessary, the proposed requirement, at Sec.  
    1003.63(a)(4), that an envelope containing an application be marked 
    ``Application for List of Pro Bono Legal Service Providers.'' Finally, 
    the Department has revised Sec.  1006.63(a)(2) to specify that, in an 
    application, a prospective provider must state how the provider's 
    contact information, in addition to the provider's name, should be set 
    forth on the List.
        The Department has revised the application requirements at Sec.  
    1003.63(b) and (d) to reflect EOIR's registration requirements for 
    attorneys and accredited representatives. Beginning December 11, 2013, 
    EOIR has required attorneys and accredited representatives to register 
    electronically with EOIR in order to practice before the immigration 
    courts and the Board of Immigration Appeals. See 78 FR 28124 (May 14, 
    2013); see also 8 CFR 1292.1(f) (stating that ``[t]he [EOIR] Director 
    or his designee is authorized to register, and establish procedures for 
    registering, attorneys and accredited representatives . . . as a 
    condition of practice before immigration judges or the Board of 
    Immigration Appeals''). In light of this requirement, the Department 
    has revised Sec.  1003.63(b)(2) to provide that, in an application to 
    appear on the List, an organization must declare that ``every attorney 
    and accredited representative who will represent clients before EOIR on 
    behalf of the organization is registered to practice before EOIR under 
    Sec.  1292.1(f).'' This provision replaces the proposed rule's 
    requirement that an organization declare that ``every attorney who will 
    provide pro bono legal services before EOIR on behalf of the 
    organization . . . [i]s eligible to practice law in and is a member in 
    good standing of the bar of'' a state or other jurisdiction. The 
    deleted requirement is unnecessary given that, to register with EOIR, 
    an attorney must list all the jurisdictions in which he or she is 
    licensed to practice law. See 8 CFR 1292.1(f) (stating that ``[t]he 
    [EOIR] Director or his designee may administratively suspend from 
    practice before the immigration judges and the Board [of Immigration 
    Appeals] any attorney or accredited representative who fails to provide 
    . . . bar admission information (if applicable)''). For attorneys 
    applying to appear on the List, the Department has revised Sec.  
    1003.63(d)(5) to provide that, instead of providing the bars in which 
    he or she is a member in good standing, an attorney must provide his or 
    her EOIR registration number.
        Under the revised Sec.  1003.63(b)(2), an organization, in its 
    application to appear on the List, is only required to declare ``[t]hat 
    every attorney and accredited representative who will represent clients 
    pro bono before EOIR on behalf of the organization is registered'' with 
    EOIR. (Emphasis added.) By contrast, the Department has revised Sec.  
    1003.63(b)(3) to state that, in its application, an organization must 
    declare ``[t]hat no attorney or representative who will provide pro 
    bono legal services on behalf of the organization in cases pending 
    before EOIR: (i) is under any order suspending, enjoining, restraining, 
    disbarring, or otherwise restricting him or her in the practice of law; 
    or (ii) is the subject of an order of disbarment under Sec.  
    1003.101(a) or suspension under Sec.  1003.101(a)(2) . . . .'' \12\ 
    (Emphasis added.) Accordingly, if an organization has an attorney or 
    accredited representative who will not enter appearances with EOIR, but 
    who will perform pro bono legal services in cases pending before EOIR 
    other than representing clients,\13\ the organization is not required 
    to declare that the attorney or accredited representative is registered 
    with EOIR. However, the organization must declare that he or she, like 
    an attorney or accredited representative who will represent clients pro 
    bono, meets the requirements of Sec.  1003.63(b)(3).\14\
    ---------------------------------------------------------------------------
    
        \12\ The Department has revised the underlying requirements at 
    Sec.  1003.62(a)(3) and (b)(3) (Sec.  1003.62(a)(3) and (b)(4) of 
    the proposed rule) to state that ``[n]o attorney or representative 
    who will provide pro bono legal services on [an] organization's 
    behalf in cases pending before EOIR is the subject of an order of 
    disbarment under Sec.  1003.101(a)(1) or suspension under Sec.  
    1003.101(a)(2).''
        \13\ As noted in Sec.  1003.62(a)(1) and (b)(1), as revised, 
    performing other pro bono legal services could include conducting an 
    intake interview or mentoring an attorney or representative to whom 
    a case is referred.
        \14\ The regulations permit individuals other than attorneys and 
    accredited representatives--for example, law students and law 
    graduates--to represent clients before EOIR in some situations. See 
    8 CFR 1292.1(a). However, only attorneys and accredited 
    representatives must register with EOIR. See 8 CFR 1292.1(f). 
    Accordingly, the requirement at Sec.  1003.63(b)(2) applies only to 
    attorneys and accredited representatives. Thus, an organization is 
    not required to declare that any other representatives who will 
    represent clients pro bono on its behalf--for example, law students 
    or graduates--are registered with EOIR. However, the requirement at 
    Sec.  1003.63(b)(3) applies to all representatives, even those who 
    are not accredited.
    ---------------------------------------------------------------------------
    
        The Department has made minor revisions to Sec.  1003.63(f), which 
    relates to the notice-and-comment period for applications. The revised 
    provision states that applications shall be publicly posted following 
    ``review of the applications'' by EOIR, as opposed to their receipt. 
    Before posting an application, EOIR will review it to ensure that the 
    application meets the regulatory requirements. For clarity, the revised 
    provision specifies that ``upon request a copy of each application 
    shall be made available for public review,'' as opposed simply to ``for 
    review.'' The revised provision no longer specifies that the copy made 
    available shall be ``date stamped.'' To simplify the time period for 
    commenting, the revised provision states that comments are due ``within 
    30 days from the first date the name of the applicant is publicly 
    posted,'' as opposed to ``15 days from the last date'' of the posting 
    (applications must be posted for 15 days). Finally, the revised 
    provision states that comments must include the commenter's name and 
    address.
        The Department has made one revision to Sec.  1003.64(b)(2). The 
    revision relates to the requirement that, in a declaration of continued 
    eligibility, a provider must include alien registration numbers of pro 
    bono clients. The revised provision requires that an organization must 
    provide, for each case, either ``the name of the organization's 
    attorneys or
    
    [[Page 59508]]
    
    representatives who provided representation or other pro bono legal 
    services, or the name of the attorney, representative, or organization 
    the case was referred to for pro bono legal services.'' This 
    information is necessary for EOIR to verify organizations' compliance 
    with the 50-hour requirement.
        The Department has simplified Sec.  1003.66, relating to when a 
    provider must inform EOIR of changes in information or status. Under 
    the revised provision, providers must contact EOIR in three situations: 
    if the provider's contact information has changed; if any specific 
    limitations to providing pro bono legal services have changed; and if 
    the provider is no longer eligible to be included on the List under 
    Sec.  1003.62. This section previously contained additional provisions, 
    for example requiring organizations to inform EOIR of any change in the 
    professional status of any attorney or representative providing pro 
    bono legal services before EOIR. The simplified provision is clearer, 
    and less burdensome on providers, than the previous version, while 
    still ensuring that EOIR has adequate information about providers.
        Finally, for flexibility, the Department has revised Sec. Sec.  
    1003.61, 1003.62, and 1003.63 to refer to recognition of organizations 
    under 8 CFR part 1292, instead of Sec.  1292.2 For precision, Sec.  
    1003.62(a)(2) has been revised to refer to a ``representative 
    accredited under part 1292 of this chapter to practice before the 
    immigration courts and the Board of Immigration Appeals,'' instead of 
    simply an ``accredited representative.'' The Department has deleted the 
    provision, at Sec.  1003.62(b)(1) of the proposed rule, that, to be 
    included on the List, a non-recognized organization must be 
    ``established in the United States.'' Upon reflection, this provision 
    was unnecessary, as Sec.  1003.61(a)(3) defines an ``organization'' as 
    ``[a] non-profit religious, charitable, social service, or similar 
    group established in the United States.'' The Department has revised 
    Sec.  1003.62(b)(1) of the final rule (Sec.  1003.62(b)(2) of the 
    proposed rule) to refer to an ``attorney or representative,'' as 
    opposed simply to an attorney. As noted above, individuals other than 
    attorneys can, in some circumstances, be authorized to provide 
    representation on behalf of an organization. See 8 CFR 1292.1(a). For 
    consistency with the rest of the rule, Sec.  1003.65(d)(3) has been 
    revised to refer to ``pro bono legal services'' instead of simply ``pro 
    bono services.''
        In addition, to accommodate the revisions described above, and to 
    make the regulation more readable, the Department has made a few minor, 
    non-substantive, revisions not referenced here.
    
    V. Notice-and-Comment Requirements
    
        The revisions to the proposed rule do not require a new notice-and-
    comment period. As noted above, the revisions pertaining to electronic 
    filings and communications, at Sec. Sec.  1003.63(f), 1003.64(b), and 
    1003.65(a)(2), (d)(2), (d)(3), and (d)(4)(ii), pertain to ``agency 
    organization, procedure, or practice'' under 5 U.S.C. 553(b). The other 
    revised provisions are logical outgrowths of those in the proposed 
    rule. See, e.g., Environmental Defense Center v. U.S. E.P.A., 344 F.3d 
    832, 851-52 (9th Cir. 2003); American Water Works ***'n v. E.P.A., 40 
    F.3d 1266, 1274 (D.C. Cir. 1994).
    
    VI. Privacy Act
    
        The Privacy Act of 1974 states that, except in certain 
    circumstances, ``[n]o agency shall disclose any record which is 
    contained in a system of records by any means of communication to any 
    person, or to another agency, except pursuant to a written request by, 
    or with the prior written consent of, the individual to whom the record 
    pertains . . . .'' 5 U.S.C. 552a(b). A ``system of records'' is ``a 
    group of any records under the control of any agency from which 
    information is retrieved by the name of an individual or by some 
    identifying number, symbol, or other identifying particular assigned to 
    the individual.'' 5 U.S.C. 552a(a)(5). An ``individual'' is ``a citizen 
    of the United States or an alien lawfully admitted for permanent 
    residence.'' 5 U.S.C. 552a(a)(2). As a policy matter, where a system of 
    records contains records pertaining both to ``individuals'' and to 
    people or entities not covered by the Privacy Act, EOIR treats all the 
    records as subject to the Privacy Act. Thus, EOIR will extend 
    administrative Privacy Act protections to the records collected under 
    this regulation even though the organizations, pro bono referral 
    services, and attorneys the records pertain to are not all 
    ``individuals'' under the Privacy Act.\15\
    ---------------------------------------------------------------------------
    
        \15\ Administrative Privacy Act protections do not include the 
    civil remedies under 5 U.S.C. 552a(g).
    ---------------------------------------------------------------------------
    
        One of the circumstances in which an agency can disclose records 
    protected by the Privacy Act is ``for a routine use,'' which is a ``use 
    . . . for a purpose which is compatible with the purpose for which [the 
    record] was collected.'' 5 U.S.C. 552a(a)(7), (b)(3). An agency that 
    maintains a system of records must publish, in the Federal Register, a 
    system of records notice that includes, among other things, ``each 
    routine use of the records contained in the system, including the 
    categories of users and the purpose of such use.'' 5 U.S.C. 
    552a(e)(4)(D). The Department will publish, in the Federal Register, a 
    system of records notice that specifies the routine uses, in line with 
    the provisions of this regulation, under which EOIR will disclose the 
    information collected under this regulation.
    
    VII. Regulatory Requirements
    
    A. Regulatory Flexibility Act
    
        In accordance with the Regulatory Flexibility Act (5 U.S.C. 
    605(b)), this rule will not have a significant economic impact on a 
    substantial number of small entities. Some small entities, such as non-
    profit organizations or small law offices, will be affected by this 
    rule. Organizations or private attorneys may be removed from the List 
    of Pro Bono Legal Service Providers if they are no longer qualified to 
    be on the List under this final rule. Likewise, those who wish to have 
    their names included on this List will be affected as they will have to 
    demonstrate their eligibility to have their names listed.
        However, this rule has no effect on the ability of organizations or 
    private attorneys to represent pro bono clients, or any other clients, 
    and it applies only with respect to organizations and attorneys who 
    choose to seek to be included on the List. Application for placement on 
    the List is completely voluntary and does not confer any rights or 
    benefits on such organizations or law offices. Placement on the List 
    does not constitute government endorsement of a particular entity or 
    private attorney; nor is the List to be used for advertising or 
    soliciting. Rather, the purpose of the List is to notify individuals in 
    immigration court proceedings that these entities or private attorneys 
    are available to provide uncompensated legal services without any 
    direct or indirect remuneration (other than filing fees or photocopying 
    and mailing expenses).
    
    B. Unfunded Mandates Reform Act of 1995
    
        This rule will not result in the expenditure by State, local, and 
    tribal governments, in the aggregate, or by the private sector of $100 
    million or more in any one year and also will not significantly or 
    uniquely affect small governments. Therefore, no actions were deemed 
    necessary under the provisions
    
    [[Page 59509]]
    
    of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1535).
    
    C. Small Business Regulatory Enforcement Fairness Act of 1996
    
        This rule is not a major rule as defined by section 251 of the 
    Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 
    804). This rule will not result in an annual effect on the economy of 
    $100 million or more; a major increase in costs or prices; or 
    significant adverse effects on competition, employment, investment, 
    productivity, innovation, or on the ability of United States-based 
    enterprises to compete with foreign-based enterprises in domestic and 
    export markets.
    
    D. Executive Order 12866 and Executive Order 13563 (Regulatory Planning 
    and Review)
    
        The Department has determined that this rule is not a ``significant 
    regulatory action'' under section 3(f) of Executive Order 12866, 
    Regulatory Planning and Review, and, therefore, it has not been 
    reviewed by the Office of Management and Budget (OMB). Nevertheless, 
    the Department certifies that this regulation has been drafted in 
    accordance with the principles of Executive Order 12866, section 1(b), 
    and Executive Order 13563. Executive Orders 12866 and 13563 direct 
    agencies to assess all costs and benefits of available regulatory 
    alternatives and, if regulation is necessary, to select regulatory 
    approaches that maximize net benefits (including potential economic, 
    environmental, public health, and safety effects, distributive impacts, 
    and equity). Executive Order 13563 emphasizes the importance of 
    quantifying both costs and benefits, reducing costs, harmonizing rules, 
    and promoting flexibility. Additionally, it calls on each agency to 
    periodically review its existing regulations and determine whether any 
    should be modified, streamlined, expanded, or repealed so as to make 
    the agency's regulatory program more effective or less burdensome in 
    achieving its regulatory objectives.
        This rule affects the function and purpose of the List of Pro Bono 
    Service Legal Service Providers. The benefits of this final rule 
    include addressing long-standing problems of abuse associated with the 
    existing List, updating the term ``free'' with ``pro bono'' legal 
    services to reflect the proper statutory language, creating a minimum 
    number of annual pro bono hours to ensure proper compliance with the 
    spirit of the regulation, and creating greater agency flexibility to 
    remove List participants who do not meet the minimum regulatory 
    requirements. Further, the rule is intended to provide individuals in 
    immigration court proceedings with better information regarding the 
    availability of pro bono representation before the immigration courts, 
    thus benefitting individuals who appear in proceedings before the 
    courts.
        Burdens to the public are applicable only to attorneys and 
    organizations making a voluntary decision to seek to be included on the 
    List; these include requirements to apply for inclusion on the List, 
    maintain updated contact information, perform a minimum of 50 annual 
    pro bono hours of service at each immigration court location where the 
    attorney or organization intends to be included on the List, and file a 
    declaration every three years of continuing eligibility to be on the 
    List. The regulations provide for removal from the List of a provider 
    who can no longer meet the requirements of inclusion on the List. The 
    Department examined these burdens to the public and has determined that 
    the benefits outweigh the burdens. The Department believes that this 
    rule will have a minimal economic impact on List participants because 
    it provides List participants with flexible means of complying with the 
    rule's requirements. Further, it will not have a substantial economic 
    impact on Department functions, as the Department is already 
    maintaining and updating such a List quarterly. The Department believes 
    this rule will have a positive economic impact for individuals in 
    proceedings before EOIR who need legal services, as the rule is 
    intended to preserve the integrity of the List and ensure that 
    providers on the List are actually available to provide pro bono legal 
    services.
    
    E. Executive Order 13132 (Federalism)
    
        This rule will not have substantial direct effects on the States, 
    on the relationship between the national Government and the States, or 
    on the distribution of power and responsibilities among the various 
    levels of government. Therefore, in accordance with section 6 of 
    Executive Order 13132, it is determined that this rule does not have 
    sufficient federalism implications to warrant the preparation of a 
    federalism summary impact statement.
    
    F. Executive Order 12988 (Civil Justice Reform)
    
        This rule meets the applicable standards set forth in sections 3(a) 
    and 3(b)(2) of Executive Order 12988.
    
    G. Paperwork Reduction Act
    
        The Department of Justice, Executive Office for Immigration Review 
    (EOIR), has submitted an information collection request to OMB for 
    review and clearance in accordance with review procedures of the 
    Paperwork Reduction Act of 1995, Public Law 104-13, 44 U.S.C. chapter 
    35, and its implementing regulations, 5 CFR part 1320. Some of the 
    comments EOIR received following publication of the proposed rule 
    related to this information collection. Notice of OMB approval for this 
    information collection will be published in a future Federal Register 
    document.
        One commenter suggested electronic filings and submissions. The 
    Department contemplates implementing an electronic/Internet-based 
    system in the future that may facilitate the collection of information. 
    In the meantime, EOIR has created an optional Form EOIR-56, Request to 
    be Included on the List of Pro Bono Legal Service Providers for 
    Individuals in Immigration Proceedings, to facilitate this information 
    collection. The form will be made available on EOIR's Web site, in a 
    fillable .pdf format. This rule implements new eligibility and 
    application requirements in order for an organization, pro bono 
    referral service, or attorney to be included on the List of Pro Bono 
    Legal Service Providers. Organizations and private attorneys that file 
    an application with EOIR to be included on the List must demonstrate 
    that they provide, or plan to provide, a minimum of 50 hours per year 
    of pro bono legal services at each immigration court location where 
    they intend to be included on the List. Entities and individuals must 
    indicate ``their availability to represent aliens in asylum proceedings 
    on a pro bono basis'' (see INA 208(d)(4)(B)) and ``their availability 
    to represent pro bono aliens in proceedings under section 240'' (see 
    INA 239(b)(2)). They must also indicate whether there are any 
    limitations on the services they plan to provide and in which 
    immigration court locations they plan to provide such services. Private 
    attorneys must demonstrate that they cannot otherwise provide such 
    services through an organization or pro bono referral service. Finally, 
    all providers must file a declaration or a new Form EOIR-56 every three 
    years, certifying that they remain eligible to be on the List. One 
    commenter was concerned with the safeguarding of the client information 
    submitted in compliance with the periodic certification. The 
    declaration certifying continuing eligibility, including the alien 
    registration numbers of clients in whose
    
    [[Page 59510]]
    
    cases the provider rendered pro bono legal services each year, would 
    not be subject to public review and would be subject to applicable 
    privacy laws.
        EOIR currently uses appropriate information technology to reduce 
    burden and improve data quality, agency efficiency, and responsiveness 
    to the public. Under this rule, EOIR will continue to do so to the 
    maximum extent practicable and will explore implementing technology to 
    facilitate information collections. EOIR will collect the information 
    for any person or entity seeking to be included on EOIR's List of Pro 
    Bono Legal Service Providers. Under the current regulation, it is 
    estimated that it takes a total of 17 hours annually to provide the 
    required information (50 applicants per year at 20 minutes per 
    application).
        Under the rule, it is estimated that 129 applicants will file 
    applications each year for the first two years (phase-in period) and 
    take an average of 30 minutes for each application, resulting in an 
    estimated total of 65 hours each year. After the first two years, it is 
    estimated that there will be 93 applicants per year, expending an 
    average of 30 minutes for each application, resulting in an estimated 
    total of 47 hours each year. This would be an increase from the current 
    estimated annual hours by 48 hours annually for the two-year phase-in 
    period and 30 hours annually for the succeeding years.
    
    List of Subjects
    
    8 CFR Part 1003
    
        Administrative practice and procedure, Aliens, Immigration, Legal 
    services, Organizations and functions (Government agencies).
    
    8 CFR Part 1240
    
        Administrative practice and procedure, Aliens.
    
    8 CFR Part 1241
    
        Administrative practice and procedure, Aliens, Immigration.
    
        Accordingly, for the reasons stated in the preamble, parts 1003, 
    1240, and 1241 of chapter V of title 8 of the Code of Federal 
    Regulations are amended as follows:
    
    PART 1003--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
    
    0
    1. The authority citation for part 1003 continues to read as follows:
    
        Authority:  5 U.S.C. 301; 6 U.S.C. 521; 8 U.S.C. 1101, 1103, 
    1154, 1155, 1158, 1182, 1226, 1229, 1229a, 1229b, 1229c, 1231, 
    1254a, 1255, 1324d, 1330, 1361, 1362; 28 U.S.C. 509, 510, 1746; sec. 
    2 Reorg. Plan No. 2 of 1950; 3 CFR, 1949-1953 Comp., p. 1002; 
    section 203 of Pub. L. 105-100, 111 Stat. 2196-200; sections 1506 
    and 1510 of Pub. L. 106-386, 114 Stat. 1527-29, 1531-32; section 
    1505 of Pub. L. 106-554, 114 Stat. 2763A-326 to -328.
    
    
    Sec.  1003.1  [Amended]
    
    0
    2. Amend Sec.  1003.1 by removing and reserving paragraph (b)(11).
    
    0
    3. Revise the heading for subpart E to read as follows:
    
    Subpart E--List of Pro Bono Legal Service Providers
    
    0
    4. Revise Sec.  1003.61 to read as follows:
    
    
    Sec.  1003.61  General provisions.
    
        (a) Definitions--(1) Director. Director means the Director of the 
    Executive Office for Immigration Review (EOIR), pursuant to 8 CFR 
    1001.1(o), and shall also include any office or official within EOIR to 
    whom the Director delegates authority with respect to subpart E of this 
    part.
        (2) Pro bono legal services. Pro bono legal services are those 
    uncompensated legal services performed for indigent individuals or the 
    public good without any expectation of either direct or indirect 
    remuneration, including referral fees (other than filing fees or 
    photocopying and mailing expenses), although a representative may be 
    regularly compensated by the firm, organization, or pro bono referral 
    service with which he or she is associated.
        (3) Organization. A non-profit religious, charitable, social 
    service, or similar group established in the United States.
        (4) Pro bono referral service. A referral service, offered by a 
    non-profit group, association, or similar organization established in 
    the United States that assists persons in locating pro bono 
    representation by making case referrals to attorneys or organizations 
    that are available to provide pro bono representation.
        (5) Provider. Any organization, pro bono referral service, or 
    attorney whose name is included on the List of Pro Bono Legal Service 
    Providers.
        (b) Authority. The Director shall maintain a list, known as the 
    List of Pro Bono Legal Service Providers (List), of organizations, pro 
    bono referral services, and attorneys qualified under this subpart to 
    provide pro bono legal services in immigration proceedings. The List, 
    which shall be updated not less than quarterly, shall be provided to 
    individuals in removal and other proceedings before an immigration 
    court.
        (c) Qualification. An organization, pro bono referral service, or 
    attorney qualifies to be included on the List if the eligibility 
    requirements under Sec.  1003.62 and the application procedures under 
    Sec.  1003.63 are met.
        (d) Organizations. Approval of an organization's application to be 
    included on the List under this subpart is not equivalent to 
    recognition under part 1292 of this chapter. Recognition under part 
    1292 of this chapter does not constitute a successful application for 
    purposes of the List.
    
    0
    5. Revise Sec.  1003.62 to read as follows:
    
    
    Sec.  1003.62  Eligibility.
    
        (a) Organizations recognized under part 1292. An organization that 
    is recognized under part 1292 of this chapter is eligible to apply to 
    have its name included on the List if the organization meets the 
    requirements in paragraphs (a)(1) through (3) of this section.
        (1) The organization will provide a minimum of 50 hours per year of 
    pro bono legal services to individuals at each immigration court 
    location where the organization intends to be included on the List, in 
    cases where an attorney or representative of the organization, or an 
    attorney or representative to whom the organization has referred the 
    case for pro bono representation, files a Form EOIR-28 Notice of Entry 
    of Appearance as Attorney or Representative before the Immigration 
    Court (EOIR-28 Notice of Entry of Appearance). When an attorney or 
    representative of the organization represents the individual pro bono 
    before the immigration court location, the organization may count, 
    toward the 50-hour requirement, the attorney's or representative's out-
    of-court preparation time and in-court time. When the organization 
    refers the case for pro bono legal services outside the organization, 
    the organization may count, toward the 50-hour requirement, time the 
    organization's attorneys and representatives spent providing pro bono 
    legal services, for example conducting an intake interview or mentoring 
    the attorney or representative to whom the case is referred. However, 
    the organization is not permitted to count the time of the attorney or 
    representative to whom the case was referred.
        (2) The organization has on its staff at least one attorney, as 
    defined in Sec.  1292.1(a)(1) of this chapter, or at least one 
    representative accredited under part 1292 of this chapter, to practice 
    before the immigration courts and the Board of Immigration Appeals.
        (3) No attorney or representative who will provide pro bono legal 
    services on
    
    [[Page 59511]]
    
    the organization's behalf in cases pending before EOIR is the subject 
    of an order of disbarment under Sec.  1003.101(a)(1) or suspension 
    under Sec.  1003.101(a)(2).
        (b) Organizations not recognized under part 1292. An organization 
    that is not recognized under part 1292 of this chapter is eligible to 
    apply to have its name included on the List if the organization meets 
    the requirements in paragraphs (b)(1) through (3) of this section.
        (1) The organization will provide a minimum of 50 hours per year of 
    pro bono legal services to individuals at each immigration court 
    location where the organization intends to be included on the List, in 
    cases where an attorney or representative of the organization, or an 
    attorney or representative to whom the organization has referred the 
    case for pro bono representation, files a Form EOIR-28 Notice of Entry 
    of Appearance. When an attorney or representative of the organization 
    represents the individual pro bono before the immigration court 
    location, the organization may count, toward the 50-hour requirement, 
    the attorney's or representative's out-of-court preparation time and 
    in-court time. When the organization refers the case for pro bono legal 
    services outside the organization, the organization may count, toward 
    the 50-hour requirement, time the organization's attorneys or 
    representatives spent providing pro bono legal services, for example 
    conducting an intake interview or mentoring the attorney or 
    representative to whom the case is referred. However, the organization 
    is not permitted to count the time of the attorney or representative to 
    whom the case was referred.
        (2) The organization has on its staff at least one attorney, as 
    defined in Sec.  1292.1(a)(1) of this chapter.
        (3) No attorney or representative who will provide pro bono legal 
    services on the organization's behalf in cases pending before EOIR is 
    the subject of an order of disbarment under Sec.  1003.101(a)(1) or 
    suspension under Sec.  1003.101(a)(2).
        (c) Pro bono referral services. A referral service is eligible to 
    apply to have its name included on the List at each immigration court 
    location where the referral service either refers or plans to refer 
    cases to attorneys or organizations that will provide pro bono legal 
    services to individuals in proceedings before an immigration judge.
        (d) Attorneys. An attorney, as defined in Sec.  1292.1(a)(1) of 
    this chapter, is eligible to apply to have his or her name included on 
    the List if the attorney meets the requirements in paragraphs (d)(1) 
    through (3) of this section.
        (1) The attorney is not the subject of an order of disbarment under 
    Sec.  1003.101(a)(1) or suspension under Sec.  1003.101(a)(2);
        (2) The attorney will provide a minimum of 50 hours per year of pro 
    bono legal services to individuals at each immigration court location 
    where the attorney intends to be included on the List, in cases where 
    he or she files a Form EOIR-28 Notice of Entry of Appearance. The 
    attorney may count, toward the requirement, both out-of-court 
    preparation time and in-court time.
        (3) The attorney cannot provide pro bono legal services through or 
    in association with an organization or pro bono referral service 
    described in paragraph (a), (b), or (c) of this section because:
        (i) Such an organization or referral service is unavailable; or
        (ii) The range of services provided by an available organization(s) 
    or referral service(s) is insufficient to address the needs of the 
    community.
    
    0
    6. Revise Sec.  1003.63 to read as follows:
    
    
    Sec.  1003.63  Applications.
    
        (a) Generally. To be included on the List, any organization, pro 
    bono referral service, or attorney that is eligible under Sec.  1003.62 
    to apply to be included on the List must file an application with the 
    Director. Applications must be received by the Director at least 60 
    days in advance of the quarterly update in order to be considered. The 
    application must:
        (1) Establish by clear and convincing evidence that the applicant 
    qualifies to be on the List pursuant to Sec.  1003.61(c);
        (2) Specify how the organization, pro bono referral service, or 
    attorney wants its name and contact information to be set forth on the 
    List; and
        (3) Identify each immigration court location where the 
    organization, pro bono referral service, or attorney provides, or plans 
    to provide, pro bono legal services.
        (b) Organizations. An organization, whether recognized or not under 
    part 1292, must submit with its application a declaration signed by an 
    authorized officer of the organization that states under penalty of 
    perjury:
        (1) That it will provide annually at least 50 hours of pro bono 
    legal services to individuals in removal or other proceedings before 
    each immigration court location identified in its application;
        (2) That every attorney and accredited representative who will 
    represent clients pro bono before EOIR on behalf of the organization is 
    registered to practice before EOIR under Sec.  1292.1(f);
        (3) That no attorney or representative who will provide pro bono 
    legal services on behalf of the organization in cases pending before 
    EOIR:
        (i) Is under any order suspending, enjoining, restraining, 
    disbarring, or otherwise restricting him or her in the practice of law; 
    or
        (ii) Is the subject of an order of disbarment under Sec.  
    1003.101(a)(1) or suspension under Sec.  1003.101(a)(2); and
        (4) Any specific limitations it has in providing pro bono legal 
    services (e.g., not available to assist detained individuals or those 
    with criminal convictions, or available for asylum cases only).
        (c) Pro bono referral services. A pro bono referral service must 
    submit with its application a declaration signed by an authorized 
    officer of the referral service that states under penalty of perjury:
        (1) That it will offer its referral services to individuals in 
    removal or other proceedings before each immigration court location 
    identified in its application; and
        (2) Any specific limitations it has in providing its pro bono 
    referral services (e.g., not available to assist detained individuals 
    or those with criminal convictions, or available only for asylum 
    cases).
        (d) Attorneys. An attorney must submit with his or her application 
    a declaration that states under penalty of perjury:
        (1) That he or she will provide annually at least 50 hours of pro 
    bono legal services to individuals in removal or other proceedings 
    before each immigration court location identified in his or her 
    application;
        (2) Any specific limitations the attorney has in providing pro bono 
    legal services (e.g., not available to assist detained individuals or 
    those with criminal convictions, or available for asylum cases only);
        (3) A description of the good-faith efforts he or she made to 
    provide pro bono legal services through an organization or pro bono 
    referral service described in Sec.  1003.62(a), (b), or (c) to 
    individuals appearing before each immigration court location listed in 
    the application;
        (4) An explanation that any such organization or referral service 
    is unavailable or that the range of services provided by available 
    organization(s) or referral service(s) is insufficient to address the 
    needs of the community;
        (5) His or her EOIR registration number;
    
    [[Page 59512]]
    
        (6) That he or she is not under any order suspending, enjoining, 
    restraining, disbarring, or otherwise restricting him or her in the 
    practice of law; and
        (7) That he or she is not the subject of an order of disbarment 
    under Sec.  1003.101(a)(1) or suspension under Sec.  1003.101(a)(2).
        (e) Applications approved before November 30, 2015. Providers whose 
    applications to be included on the List were approved before November 
    30, 2015 must file an application under this section as follows: 
    Organizations and pro bono referral services, within one year of 
    November 30, 2015; attorneys, within six months of November 30, 2015. 
    The names of providers who do not file an application as required by 
    this paragraph shall be removed from the List following expiration of 
    the application time period, the removal of which will be reflected no 
    later than in the next quarterly update.
        (f) Notice and comments--(1) Public notice and comment. The names 
    of the applicants, whether organizations, pro bono referral services, 
    or individuals, meeting the regulatory requirements to be included on 
    the List shall be publicly posted for 15 days after review of the 
    applications by the Director, and upon request a copy of each 
    application shall be made available for public review. Any individual 
    may forward to the Director comments or a recommendation for approval 
    or disapproval of an application within 30 days from the first date the 
    name of the applicant is publicly posted. The commenting party shall 
    include his or her name and address. A comment or recommendation may be 
    sent to the Director electronically, in which case the Director shall 
    transmit the comment or recommendation to the applicant. A comment or 
    recommendation not sent to the Director electronically must include 
    proof of service on the applicant, in accordance with the definition of 
    ``service'' set forth in Sec.  1003.13.
        (2) Response. The applicant has 15 days to respond from the date 
    the applicant was served with, or notified by the Director of, the 
    comment. All responses must be filed with the Director and include 
    proof of service of a copy of such response on the commenting party, in 
    accordance with the definition of ``service'' set forth in Sec.  
    1003.13.
    
    0
    7. Revise Sec.  1003.64 to read as follows:
    
    
    Sec.  1003.64  Approval and denial of applications.
    
        (a) Authority. The Director in his discretion shall have the 
    authority to approve or deny an application to be included on the List 
    of Pro Bono Legal Service Providers. The Director may request 
    additional information from the applicant to determine whether the 
    applicant qualifies to be included on the List.
        (b) Decision. The applicant shall be notified of the decision in 
    writing. The written notice shall be served in accordance with the 
    definition of ``service'' set forth in Sec.  1003.13, at the address 
    provided on the application unless the applicant subsequently provides 
    a change of address pursuant to Sec.  1003.66, or shall be transmitted 
    to the applicant electronically.
        (1) Denials. If the application is denied, the applicant shall be 
    given a written explanation of the grounds for such denial, and the 
    decision shall be final. Such denial shall be without prejudice to file 
    another application at any time after the next quarterly publication of 
    the List.
        (2) Approval and continuing qualification. If the application is 
    approved, the applicant's name will be included on the List at the next 
    quarterly update. Every three years from the date of approval, a 
    provider must file with the Director a declaration, under penalty of 
    perjury, stating that the provider remains qualified to be included on 
    the List under Sec.  1003.62(a), (b), (c), or (d). For organizations 
    and attorneys, the declaration must include alien registration numbers 
    of clients in whose cases the provider rendered pro bono legal services 
    under Sec.  1003.62(a)(1), (b)(1), or (d)(2), representing at least 50 
    hours of pro bono legal services each year since the provider's most 
    recent such declaration, or since the provider was included on the 
    List, whichever was more recent. Organizations must provide, for each 
    case listed, the name of the organization's attorneys or 
    representatives who provided representation or other pro bono legal 
    services, or the name of the attorney, representative, or organization 
    the case was referred to for pro bono legal services. If a provider 
    fails to timely file the declaration or declares that it is no longer 
    qualified to be included on the List, the provider's name will be 
    removed from the List at the next quarterly update. Failure to file a 
    declaration within the applicable time period does not prohibit the 
    filing of a new application to be included on the List.
    
    0
    8. Revise Sec.  1003.65 to read as follows:
    
    
    Sec.  1003.65  Removal of a provider from the List.
    
        (a) Automatic removal. If the Director determines that an attorney 
    on the List is the subject of a final order of disbarment under Sec.  
    1003.101(a)(1), or an order of suspension under Sec.  1003.101(a)(2), 
    then the Director shall:
        (1) Remove the name of the attorney from the List no later than at 
    the next quarterly update; and
        (2) Notify the attorney of such removal in writing, at the last 
    known address given by the provider or electronically.
        (b) Requests for removal. (1) Any provider may, at any time, submit 
    a written request to have the provider's name removed from the List. 
    The written request may include an explanation for the voluntary 
    removal. Upon such written request, the name of the provider shall be 
    removed from the List, and such removal will be reflected no later than 
    in the next quarterly update.
        (2) Any provider removed from the List at the provider's request 
    may seek reinstatement to the List upon written notice to the Director. 
    Any request for reinstatement must include a new declaration of 
    eligibility, as set forth under Sec.  1003.63(b), (c), or (d). 
    Reinstatement to the List is at the sole discretion of the Director. 
    Upon the Director's approval of reinstatement, the provider's name 
    shall be included on the List no later than in the next quarterly 
    update. Reinstatement to the List does not affect the requirement under 
    Sec.  1003.64(b)(2) that a provider submit a new declaration of 
    eligibility every three years from the date of the approval of the 
    original application to be included on the List.
        (c) EOIR inquiry in response to complaints. If EOIR receives 
    complaints that a particular provider on the List may no longer be 
    accepting new pro bono clients, the Director may send a written inquiry 
    to the provider noting that EOIR has received complaints with regard to 
    the provider's acceptance of pro bono clients and allowing an 
    opportunity for the provider to state whether the provider is 
    continuing to comply with the regulations in this subpart or, if 
    appropriate, whether the provider wishes to request voluntary removal 
    from the List as provided in paragraph (b) of this section. The 
    Director may remove a provider from the List for failure to respond to 
    a written inquiry issued under this paragraph within 30 days or such 
    additional time period stated by the Director in the written inquiry.
        (d) Procedures for removing providers from the List. The following 
    provisions apply in cases not covered by paragraphs (a), (b), or (c) of 
    this section.
        (1) Grounds. A provider shall be removed from the List if it, he, 
    or she:
        (i) Fails to comply with Sec.  1003.66;
    
    [[Page 59513]]
    
        (ii) Has filed a false declaration in connection with an 
    application filed pursuant to Sec.  1003.63;
        (iii) Improperly uses the List primarily to advertise or solicit 
    clients for compensated legal services; or
        (iv) Fails to comply with any and all other requirements of this 
    subpart.
        (2) Notice. If the Director determines that a provider falls within 
    one or more of the enumerated grounds under paragraph (d)(1) of this 
    section, the Director shall promptly notify the provider in writing, at 
    the address last provided to the Director by the provider or 
    electronically, of the Director's intention to remove the name of the 
    provider from the List.
        (3) Response. The provider may submit a written answer within 30 
    days from the date the notice is served, as described in Sec.  1003.13, 
    or is sent to the provider electronically. The provider must establish 
    by clear and convincing evidence that the provider continues to meet 
    the qualifications for inclusion on the List, by declaration under 
    penalty of perjury as to the provider's continued compliance with 
    eligibility requirements under this subchapter, which must include 
    alien registration numbers of clients in whose cases the provider 
    rendered pro bono legal services under Sec.  1003.62(a)(1), (b)(2), or 
    (d)(2), representing at least 50 hours of pro bono legal services each 
    year since the provider's most recent declaration under Sec.  
    1003.64(b)(2), or since the provider was included on the List, 
    whichever was more recent.
        (4) Decision. If, after consideration of any response submitted by 
    the provider, the Director determines that the provider is no longer 
    qualified to remain on the List, the Director shall:
        (i) Remove the name of the provider from the List no later than in 
    the next quarterly update; and
        (ii) Notify the provider of such removal in writing, at the address 
    last provided to the Director by the provider or electronically.
        (5) Disciplinary Action. Removal from the List pursuant to Sec.  
    1003.65(a), (b), (c), or (d) shall be without prejudice to the 
    authority to discipline a practitioner under EOIR's rules and 
    procedures for professional conduct for practitioners listed in 8 CFR 
    part 1003, subpart G.
    
    0
    9. Add Sec.  1003.66 to read as follows:
    
    
    Sec.  1003.66  Changes in information or status.
    
        All providers with a pending application or currently on the List 
    must notify the Director in writing within ten business days if:
        (a) The provider's contact information has changed;
        (b) Any specific limitations in providing pro bono legal services 
    under Sec.  1003.63(b)(4), (c)(2), or (d)(2) have changed; or
        (c) The provider is no longer eligible under Sec.  1003.62.
    
    PART 1240--PROCEEDINGS TO DETERMINE REMOVABILITY OF ALIENS IN THE 
    UNITED STATES
    
    0
    10. The authority citation for part 1240 continues to read as follows:
    
        Authority:  8 U.S.C. 1103, 1182, 1186a, 1224, 1225, 1226, 1227, 
    1251, 1252 note, 1252a, 1252b, 1362; secs. 202 and 203, Pub. L. 105-
    100 (111 Stat. 2160, 2193); sec. 902, Pub. L. 105-277, (112 Stat. 
    2681).
    
    
    0
    11. In Sec.  1240.10, revise paragraphs (a)(2) and (3) to read as 
    follows:
    
    
    Sec.  1240.10  Hearing.
    
        (a) * * *
        (2) Advise the respondent of the availability of pro bono legal 
    services for the immigration court location at which the hearing will 
    take place, and ascertain that the respondent has received a list of 
    such pro bono legal service providers.
        (3) Ascertain that the respondent has received a copy of appeal 
    rights.
    * * * * *
    
    
    Sec.  1240.32  [Amended]
    
    0
    12. In Sec.  1240.32, amend paragraph (a) by removing the words 
    ``Government, and of the availability of free legal services programs 
    qualified under 8 CFR part 1003 and organizations recognized pursuant 
    to Sec.  1292.2 of this chapter located in the district where his or 
    her exclusion hearing is to be held; and shall ascertain that the 
    applicant has received a list of such programs'' and adding, in their 
    place, the words ``Government; advise him or her of the availability of 
    pro bono legal services for the immigration court location at which the 
    hearing will take place, and ascertain that he or she has received a 
    list of such pro bono legal service providers''.
    
    
    Sec.  1240.48  [Amended]
    
    0
    13. In Sec.  1240.48, amend paragraph (a) by removing the words ``free 
    legal services programs qualified under 8 CFR part 1003 and 
    organizations recognized pursuant to Sec.  1292.2 of this chapter, 
    located in the district where the deportation hearing is being held; 
    ascertain that the respondent has received a list of such programs'' 
    and adding, in their place, the words ``pro bono legal services for the 
    immigration court location at which the hearing will take place; 
    ascertain that the respondent has received a list of such pro bono 
    legal service providers''.
    
    PART 1241--APPREHENSION AND DETENTION OF ALIENS ORDERED REMOVED
    
    0
    14. The authority citation for part 1241 continues to read as follows:
    
        Authority:  5 U.S.C. 301, 552, 552a; 8 U.S.C. 1103, 1182, 1223, 
    1224, 1225, 1226, 1227, 1231, 1251, 1253, 1255, 1330, 1362; 18 
    U.S.C. 4002, 4013(c)(4).
    
    
    Sec.  1241.14  [Amended]
    
    0
    15. InSec.  1241.14, amend paragraph (g)(3)(i) by removing the words 
    ``a list of free legal service providers,'' and adding, in their place, 
    the words ``the List of Pro Bono Legal Service Providers for the 
    immigration court at which the hearing is being held''.
    
        Dated: September 15, 2015.
    Sally Quillian Yates,
    Deputy Attorney General.
    [FR Doc. 2015-24017 Filed 9-29-15; 11:15 am]
     BILLING CODE 4410-30-P
    
    
    
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